*District Judge of the Western District of Louisiana,

sitting by designation. 

1

United States Court of Appeal,

Fifth Circuit.

Nos. 93-2052, 93-2446.

In re Shearn MOODY, Jr., Debtor.

Martin Paul SOLOMON, Appellant,

v.

W. Steve SMITH, Trustee and Shearn Moody, Jr., Debtor, Appellees.

Jan. 10, 1995.

Appeals from the United States District Court for the Southern

District of Texas.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and STAGG,

District Judge.*

EMILIO M. GARZA, Circuit Judge:

Attorney Martin Paul Solomon represented Shearn Moody in

proceedings concerning Moody's bankruptcy and filed an application

for compensation from the bankruptcy estate for his services. The

district court referred the fee application to Bankruptcy Judge

Letitia Z. Clark. After a hearing, Judge Clark denied Solomon's

application, and her decision was entered in the docket for the

Moody bankruptcy case. Because the district court had previously

withdrawn the reference for the entire case, the Moody docket was

in the district court.

More than ten days after the entry of judgment on Judge

Clark's denial of Solomon's fee application, Solomon filed both a

notice of appeal to this court and a motion under Bankruptcy Rule
 

1The clerk entered the judgment on September 25, 1992. 

Solomon did not file his motion until December 31, 1992. 

 

2See Order of July 19, 1993 (No. 93-2052). 

 

3"On motion and upon such terms as are just, the court may

relieve a party from a final judgment, order, or proceeding for

the following reasons: (1) mistake, inadvertence, surprise, or

excusable neglect...." Fed.R.Civ.P. 60(b). 

2

8002 for an extension of time to file a notice of appeal to the

district court.1 Solomon alleged that, because Judge Clark's

decision had been entered on a district court docket, he was

confused as to whether it was a decision of the district court or

the bankruptcy court. The district court dismissed Solomon's

motion and appeal for want of jurisdiction because it was untimely.

A panel of this court dismissed the notice of appeal for lack of

jurisdiction because the "appellant [sought] to appeal directly

from the bankruptcy court."2

Solomon also filed a motion in the district court for relief

from judgment under Rule 60(b) of the Federal Rules of Civil

Procedure,3 asking the district court to grant him relief from

Judge Clark's decision. The district court denied Solomon's

motion, stating that, because Judge Clark's decision was not a

decision of the district court, there existed no final judgment of

the district court from which it could grant relief. Solomon

appeals both the district court's dismissal of his notice of appeal

for want of jurisdiction and its denial of relief from judgment.

 Questions concerning jurisdiction are questions of law. We

therefore review the actions of the district court de novo. See

Bradley v. Pacific Southwest Bank (In re Bradley), 960 F.2d 502,
 

4"The district courts of the United States shall have

jurisdiction to hear appeals from final judgments, orders, and

decrees ... of bankruptcy judges entered in cases and proceedings

referred to the bankruptcy judges under section 157 of this

title." 28 U.S.C. § 158(a) (1988). Because the court of appeals

has jurisdiction over decisions of only the district court, a

party cannot appeal a bankruptcy court's decision directly to the

court of appeals. See 28 U.S.C. § 158(d) (1988) ("The courts of

appeals shall have jurisdiction of appeals from all final

decisions, judgments, orders, and decrees entered under

subsections (a) and (b) of this section."). 

 

5"The notice of appeal shall be filed with the clerk within

10 days of the date of the entry of the judgment, order, or

decree appealed from." Bankr.R. 8002(a) (Supp. V 1993). 

 

6Bankr.R. 8002(c) (Supp. V 1993). 

3

507 (5th Cir.1992) (reviewing legal conclusions regarding

bankruptcy issues de novo ), cert. denied, --- U.S. ----, 113 S.Ct.

1412, 122 L.Ed.2d 783 (1993).

 Appeals from decisions of the bankruptcy court lie with the

district court.4 A party appealing a judgment of the bankruptcy

court must file a notice of appeal within ten days after entry of

the judgment.5 Failure to file a timely notice deprives the

district court of jurisdiction to consider the appeal. Abraham v.

Aguilar (In re Aguilar), 861 F.2d 873, 874 (5th Cir.1988). If the

ten days have elapsed, however, a party may obtain an extension of

time if excusable neglect caused the failure to make a timely

appeal.6

 Solomon argues that, because the Moody case used a district

court docket, he was legitimately confused as to whether Judge

Clark's decision was a decision of the bankruptcy court or the

district court, and we should therefore excuse his failure to make

a timely appeal. Section 157(a) of Title 28 states that "[e]ach
 

7Indeed, Solomon himself used the header "In the United

States Bankruptcy Court for the Southern District of Texas

Houston Division" in his first motion to Judge Clark after the

referral. See Docket No. 1550 ("Emergency Motion for an Order

Requesting Letitia Z. Clark To Disqualify and Recuse Herself"). 

4

district court may provide that any or all cases under title 11 and

any or all proceedings arising under title 11 or arising in or

related to a case under title 11 shall be referred to the

bankruptcy judges for the district." 28 U.S.C. § 157(a) (1988).

Solomon argues that, because the district court did not

specifically state that this was a § 157 referral, he reasonably

believed that the referral was not to the bankruptcy court, but

merely to Judge Clark as a master or magistrate. We have not

found, nor has Solomon supplied, any basis for requiring an

explicit recitation of § 157 when a district court makes a referral

under that statute. Moreover, Judge Clark's subsequent rulings all

specifically used a "bankruptcy court" header, thereby clarifying

that Judge Clark was acting as a bankruptcy court. Consequently,

Solomon had ample notice that Judge Clark's decision was that of

the bankruptcy court.7

 Solomon further argues that, because Judge Clark's decision

used a district docket number and not a bankruptcy docket number,

it was not properly docketed and the ten-day period has not yet

begun. He contends that the Bankruptcy Rules required the clerk to

enter Judge Clark's decision on a "bankruptcy docket." We

disagree. Entering judgments of the bankruptcy court is a duty of
 

8Under Rule 9001(3), " "clerk' means bankruptcy clerk, if

one has been appointed, otherwise clerk of the district court." 

Bankr.R. 9001(3) (Supp. V 1993). Because the Houston Division of

the Southern District of Texas has not appointed a bankruptcy

clerk, the clerk at issue is the clerk of the district court. 

 

9The cases that Solomon cites in support of his argument

deal with circumstances in which either no docket entry was made

or the entry was not dated. See, e.g., In re Allustiarte, 848

F.2d 116 (9th Cir.1988); Stelpflug v. Federal Land Bank, 790

F.2d 47 (7th Cir.1986). Here, the clerk properly docketed the

judgment of Judge Clark; therefore, those cases do not apply. 

 

10See Order of July 19, 1993 (No. 93-2052) (dismissing

appeal because "appellant [sought] to appeal directly from the

bankruptcy court"). 

5

the clerk.8 Under Rule 5003(a) of the Bankruptcy Code, "[t]he

clerk shall keep a docket in each case under the Code." Bankr.R.

5003(a) (1988). Although a bankruptcy court may keep a separate

docket, nothing in the Code or the Rules requires the clerk to keep

a "bankruptcy docket." In this case, jurisdiction over the Moody

bankruptcy was in the district court, with the exception of

Solomon's fee application. Accordingly, the "docket in [the Moody]

case" at that time was the district court docket. The clerk

properly entered Judge Clark's decision on the docket for the Moody

case, thereby starting the ten-day clock for filing a notice of

appeal.9

Solomon failed to file his notice of appeal within the

ten-day period mandated by Rule 8002, and he has not demonstrated

excusable neglect permitting an extension of time. Moreover,

because Judge Clark's ruling was a decision of the bankruptcy court

and not the district court,10 the district court properly denied

Solomon's Rule 60(b) motion for lack of a final judgment of the
6

district court. We accordingly AFFIRM the decisions of the

district court.